State v. Lomanto
| Decision Date | 15 October 2019 |
| Docket Number | DOCKET NO. A-5273-16T4 |
| Parties | STATE OF NEW JERSEY, Plaintiff-Respondent, v. DAVID J. LOMANTO, Defendant-Appellant. |
| Court | New Jersey Superior Court — Appellate Division |
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
Before Judges Rothstadt and Natali.
On appeal from the Superior Court of New Jersey, Law Division, Ocean County, Indictment No. 15-04-0776.
Joseph E. Krakora, Public Defender, attorney for appellant (Amira Rahman Scurato, Designated Counsel, on the brief).
Bradley D. Billhimer, Ocean County Prosecutor, attorney for respondent (Samuel J. Marzarella, Chief Appellate Attorney, of counsel; William Kyle Meighan, Senior Assistant Prosecutor, on the brief).
The opinion of the court was delivered by
ROTHSTADT, J.A.D.
Defendant David J. Lomanto appeals from a judgment of conviction that the Law Division entered after a jury found him guilty of fourth-degree public communication of obscenity, N.J.S.A. 2C:34-4(b), and obstructing a criminal investigation, N.J.S.A. 2C:29-1. He also challenges the trial judge finding him guilty of the petty disorderly persons offense of disorderly conduct, N.J.S.A. 2C:33-2(a)(2). Defendant's convictions arose from his arrest after a woman observed him watching pornography one evening while he was sitting in his open-windowed vehicle at a fast food restaurant's parking lot. On appeal, defendant challenges the constitutionality of the obscenity statute, the trial judge's denial of his suppression motion, and the sufficiency of the evidence supporting his convictions for obstruction and disorderly conduct. For the reasons that follow, we affirm.
The facts developed at trial are summarized as follows. On April 22, 2014, at 6:33 p.m., defendant parked his car in a parking space near the front entrance of the fast food restaurant and shortly thereafter, he lowered the vehicle's driver-side window all the way down.
Approximately a half-hour later, a mother, with her twelve-year old son in the car, parked next to defendant. After parking, the boy exited his mother's vehicle and headed towards the restaurant, where he was grabbing a meal before his basketball practice.
While the boy was in the restaurant, the mother noticed defendant had "an electronic device on his steering wheel" that "looked like an iPad." At the time, while her vehicle's windows were slightly lowered, the mother looked at defendant's iPad from inside her car and noticed "there was . . . porn going on the video." Specifically, she saw a "woman with blond hair" performing "oral sex" on a man and then "having sex . . . after that." She also "heard moaning on the video" and during depiction of the oral sex, the mother "saw [a] penis." The mother became "[m]ortified" and "shocked" as they lived in "a small town" and she "[n]ever experienc[ed] anything like th[at] in [her] life."
Approximately seven minutes after he went into the restaurant, the boy returned to his mother's car. There was no evidence that the boy saw or heard any pornography.
After her son entered the car, the mother immediately drove out of the parking lot without contacting the police because she "was in shock."However, after arriving at her son's basketball practice, the mother shared her observations with a friend of hers. That friend contacted a local police officer.
After receiving information about defendant's location, his car, and his alleged activities, the reporting officer headed to the restaurant to respond and relayed information about defendant over his radio to other officers. In notifying the other officers, the reporting officer stated there was "a suspicious vehicle in the [restaurant's] parking lot that had been there for an extended period of time." A local canine police officer also responded to the parking lot where the reporting officer met her.
When the officers arrived at approximately 8:21 p.m., defendant was still parked at the location and his vehicle's windows were all the way down. The canine officer parked behind defendant's vehicle, which prevented him from being able to drive away. According to the officer, when she proceeded towards the driver-side of defendant's vehicle, she saw an electronic device "propped up on . . . the steering wheel, and on the screen appeared to be an Asian girl covered -- sort of pulling a white sheet or something over herself." She observed what "appeared to be . . . a live interaction of some sort."
When the officer reached defendant, who remained seated in his vehicle, defendant asked, "what's the problem?" The officer "identified herself and . . .explained . . . that [she] was approaching him" because she "had received a complaint." Defendant then quickly closed out of the screen displayed on his device. At that point, the officer observed "behind [the iPad's] screen was another screen that had girls or women," but the officer "wasn't sure" as they looked
The officer asked defendant "for his identification," which he refused to provide to her. According to the officer, she asked for the identification "[j]ust to conduct the investigation to see if there was some sort of crime being committed or . . . just to investigate the complaint that [she] received." The officer "asked [defendant] repeatedly for identification, . . . he began saying that he doesn't have to provide it, [and] that . . . his rights were being violated." "[W]hile verbalizing that he wasn't going to provide . . . any of his identifying information," defendant "reached around in the vehicle" toward "the rear of the center console."
When defendant repeatedly refused to provide his identification, the officer finally asked defendant to exit the vehicle, which he did not do voluntarily until the officer opened his vehicle's door. At that point, theofficer placed defendant under arrest for obstruction and searched him.1 The reporting officer then proceeded to secure the vehicle, raised the windows, and removed the key.
Defendant's vehicle was later impounded and searched pursuant to a warrant. The affidavit supporting the warrant stated that there was probable cause to believe defendant's electronic devices contained evidence associated with child pornography and endangering the welfare of children based on defendant's viewing of pornography at a fast food restaurant in front of a minor, the recovery of kids' toys from his person, and the appearance of young girls on his iPad when the officer approached his car. Pursuant to that search warrant, the police recovered an iPad and cell phone from the front seat, three cell phones in the glove compartment, another cell phone from the rear seat, and a second iPad and a laptop from the trunk of defendant's vehicle.
A police expert in computer forensics unsuccessfully attempted to access the contents of the iPad defendant was looking at as it was locked with a passcode. However, in 2016 the officer secured a search warrant to unlock the iPad with a device. In his affidavit for the search warrant, the officer stated hehad probable cause to believe the iPad contained evidence that pertained to public indecency and particularly public communication of obscenity. After the application was granted, the officer extracted data from the iPad that showed between 6:30 p.m. to 10:00 p.m. on April 22, 2014, defendant was browsing one or more pornography websites through the restaurant's wifi connections. In addition, the officer extracted Skype conversation logs between defendant, whose username was "hunkofburninglove," and several other persons with usernames of "Sharen_cute," "Marie.aguilar84," and "Maureen1512," who exchanged flirtatious messages with defendant.
Defendant was charged in an April 16, 2015 indictment with one count of each of the two crimes that the jury later found him guilty of committing and in a summons complaint with the petty disorderly persons offense, which the trial judge found him guilty of committing. Defendant filed a motion to dismiss the indictment on August 13, 2015. At an October 2, 2015 hearing, defendant argued that the public communication of obscenity statute was "unconstitutionally vague in that the mens rea element of the crime is not defined." Defendant also challenged whether he obstructed an investigation. The judge denied the motion. Defendant filed a second motion to dismiss the indictment on April 28, 2016, and cited a proposed but un-adopted amendmentto the public communication of obscenity statute to establish that the statute did not apply to conduct inside a motor vehicle. At a June 9, 2016 hearing, the judge treated this motion as one for reconsideration of her earlier order "pursuant to either Rule 1:7-4 or Rule 4:49-2." The judge held that the motion was "procedurally barred [under Rule 1:7-4(b)] because defendant filed the motion 270 days after th[e] court's initial decision on the motion to dismiss the indictment." Further, the judge held that "even if the motion was timely filed, defendant's motion would still fail" because the bill amending the statute sought only "to clarify that a person commits a crime of the fourth-degree if he publicly displays obscene material in or on a motor vehicle he owns, operates or leases." The judge found "the purpose of the proposed bill is not to create a new basis for the application of the law or to add a new basis, but to affirm, in th[e] [c]ourt's opinion unnecessarily, that it applies to vehicles."
Defendant filed a motion to suppress the introduction into evidence of his iPad on April 4, 2017. He argued that the State lacked "probable cause [to] issu[e] a search warrant of [h...
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